Employment Law Case Update: Breakdown of Trust and Confidence

When an employee is diagnosed with an illness, it's crucial that as an employer you offer them the right support and don't discriminate against them.  Our Employment Law team today review the case of Mr D Barrow v Kellog Brown & Root (UK) Limited 2020 in which this didn't happen and the company was faced with a £2.5million payout.

Mr Barrow was a member of his employer’s senior leadership team, and at the time of his dismissal in May 2018 had been employed by the company for just over 36 years.

In November 2017, Mr Barrow went to see a specialist about persistent, irritating redness on his skin. He was prescribed a strong oral steroid which began to effect his behaviour, including making him “hyperactive and energetic” and making it hard for him to concentrate.

The following week, Mr Barrow asked HR what had been processed on the company’s systems regarding a recent promotion. He was angry to read that it looked like he had been given the promotion just to make him appear senior to another employee. He said he felt “abused” to be promoted without a corresponding pay increase, and that it reinforced his feelings of being “treated unfairly and undervalued” by Mr Barrie, his line manager. The steroid continued to affect his state of mind, amplifying his agitation. He sent a lengthy email to Mr Barrie complaining of a number of issues including being under compensated and denied meaningful promotion. In a follow up email Mr Barrow informed HR and Mr Barrie of his medication and its effects on his disposition. He was referred to Occupational Health who recommended time off while the effects of the steroids reduced.

Mr Barrow then had a performance review with Mr Barrie in early December but discussion of his performance and objectives was rushed. He was disappointed at the lack of discussion and emailed Mr Barrie to express this. Mr Barrie responded that he did not want to get into a lengthy email discussion about this and suggested a follow up meeting.

A couple of days later, Mr Barrow was invited to meet with an HR Director, who told him: “I’m afraid KBR can no longer employ you.” The meeting lasted 30 minutes and Mr Barrow was then given 20 minutes to pack up his things.  At this stage, he was unsure whether he had been dismissed or suspended.

In January 2018, solicitors for Mr Barrow informed the company that Mr Barrow had been diagnosed with a form of lymphoma and would be undergoing treatment.

In March 2018, the company invited Mr Barrow to a meeting to discuss his ability to work with others at the company. The invitation stated that Mr Barrow’s employment may be terminated if he could not comply with management instructions and that in such a case, termination would be on the basis of a breakdown in trust and confidence. Mr Barrow was unable to attend this meeting because he was beginning cancer treatment.

Mr Barrow did eventually meet with a representative of the company at the end of April 2018. The company subsequently emailed many other employees in what the Employment Tribunal (ET) concluded was “a trawl for information supporting its case” against Mr Barrow. Mr Barrow was not given information about the case against him and was not told what other employees had said about him.

At the end of May 2018, Mr Barrow was dismissed with immediate effect. The dismissal letter said he was being dismissed for a “breakdown in trust and confidence” and cited his emails to Mr Barrie, and his public criticisms of the company’s leadership team.

Mr Barrow subsequently brought claims for unfair dismissal and disability discrimination against the company.

The ET found that KBR had failed to prove there had been a breakdown in trust and confidence, finding that “Mr Barrie had decided that he wanted [Mr Barrow] to go, and the only way this could be done quickly was to dress it up as a breakdown in trust and confidence.” Further, the ET found that there was no genuine investigation into complaints against Mr Barrow, and that the process adopted by the company was a “sham” put on to create the impression that the dismissal was fair. His claim of unfair dismissal was therefore well founded.

The ET found that the emails written by Mr Barrow when he was experiencing side effects of his medication were material factors in the decision to dismiss. While KBR did not know Mr Barrow had cancer when they initially decided to dismiss him in December, they did have knowledge by the second dismissal in May. This second dismissal “was an opportunity to take a different approach knowing that [Mr Barrow] was disabled and that his manner in writing the above emails was affected by the medication he was taking.” KBR failed to properly take into account Mr Barrow’s disability and therefore his claims of discrimination arising from disability and harassment succeeded.

The ET awarded Mr Barrow £2.5 million including £7,500 for aggravated damages.

This case serves as a warning to employers of the cost of failing to follow proper procedures and of failing to properly consider an employee’s disability. The ET was very critical of KBR’s actions to try and “dress up” the dismissal as a breakdown in trust and confidence with a “sham” procedure, and this is reflected in the large sum of compensation awarded.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.